Scible v. Steward et al

Filing 50

ORDER ADOPTING REPORT AND RECOMMENDATION, as to 48 Report and Recommendations. DENIES as to 19 Motion to Amend/Correct; DENIES as to 20 Motion for Summary Judgment; DENIES as to 2 Motion for Preliminary Injunction; GRANTED IN PART AND DENIED IN PART as to 33 Motion to Dismiss. This action is referred back to Magistrate Judge Kaull for further proceedings. Signed by District Judge Irene M Keeley on 1/13/2009. (jmm)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA LAWRENCE SCIBLE, Plaintiff, v. Civil Action No. 1:08CV100 (Judge Keeley)

KAREN STEWARD, WILLIAM ANDERSON, ROBERT HILL, JOHN DOE, DONNIE SPRINGSTON, WILLIAM FOX, JIM RUBENSTEIN, TERESA WAID, ROBIN MILLER, SANDY TIEGE, JAMES GRAGG, BRIAN SCOTT, WILLIAM HALE and THE WEST VIRGINIA DIVISION OF CORRECTIONS, Defendants. ORDER ADOPTING REPORT AND RECOMMENDATION On April 7, 2008, pro se plaintiff Lawrence Scible ("Scible") filed a complaint and motion for preliminary injunction pursuant to 42 U.S.C. § 1983. In the complaint, Scible alleges that the

defendants have violated his constitutional rights, including his freedom of speech, by punishing him for alleged violations of Department of Corrections' policies that he contends are vague and ambiguous. The Court referred this matter to United States

Magistrate Judge John S. Kaull for initial screening and a report and recommendation in accordance with 28 U.S.C. § 1915A and Local Rule of Prisoner Litigation 83.02. On April 24, 2008, of Magistrate case and Judge Kaull conducted that a

preliminary

review

the

determined

summary

dismissal was not warranted.

Accordingly, he directed the United

States Marshal's Service to serve the defendants.

SCIBLE V. STEWARD, ET AL. ORDER ADOPTING REPORT AND RECOMMENDATION

1:08CV100

On April 30, 2008, Scible filed an addendum to his complaint, and also filed a motion for summary judgment. On May 21, 2008, the

defendants responded to the summary judgment motion, and also filed their own motion to dismiss. Scible filed a response on June 6,

2008 to the motion to dismiss, to which the defendants replied on June 13, 2008. Then, on August 21, 2008, Scible filed a supplement in support of his complaint. On December 22, 2008, Magistrate Judge Kaull issued a Report and Recommendation ("R&R") recommending that Scible's motions for summary judgment and a preliminary injunction be denied. He

further recommended that Scible's addendum to the complaint be construed as a motion to amend and be denied. He recommended that

the defendants' motion to dismiss be granted-in-part and denied-inpart. Finally, the Magistrate Judge recommended that defendants

Springston, Miller, Tiege, Gragg and Scott be dismissed without prejudice, and defendants Fox, Waid, Rubenstein and the West Virginia Division of Corrections be dismissed with prejudice. The R&R also specifically warned Scible that failure to object to the recommendations within ten days of receipt of the R&R would result in the waiver of his appellate rights on this issue. Nevertheless, no objections have been filed.1

Scible's failure to object to the Report and Recommendation not only waives his appellate rights in this matter, 2

1

SCIBLE V. STEWARD, ET AL. ORDER ADOPTING REPORT AND RECOMMENDATION

1:08CV100

Consequently, the Court ADOPTS the R&R (dkt. no. 48) in its entirety and ORDERS as follows: · · · · Scible's motion for preliminary injunction (dkt. no. 2) is DENIED; Scible's addendum to his Complaint (dkt. no. 19) is construed as a motion to amend and is DENIED; Scible's motion for summary judgment (dkt. no. 20) is DENIED; The defendants' motion to dismiss (dkt. no. 33) is GRANTED-IN-PART and DENIED-IN-PART. Specifically, the defendants' motion to dismiss is granted to the extent that Scible's First Amendment claim with regard to disciplinary action SMC-07-0389-H is DISMISSED WITH PREJUDICE for failure to state a claim. Scible's First Amendment claim with regard to disciplinary action HCC08-0338-T and his retaliatory transfer claim are DISMISSED WITHOUT PREJUDICE, for failure to exhaust. However, the defendants' motion to dismiss is denied to the extent that it seeks to dismiss Scible's claim that disciplinary action SMC-07-0389-H is vague and ambiguous as applied to the particular circumstances of this case and that his First Amendment rights were violated with respect to disciplinary actions SMC-07-0413-H and SMC-070425-H; Defendants Springston, Miller, Tiege, Gragg and Scott are DISMISSED WITHOUT PREJUDICE from this action; and Defendants Fox, Waid, Rubenstein and the West Virginia Division of Corrections are DISMISSED WITH PREJUDICE from this action.

· ·

but also relieves the Court of any obligation to conduct a de novo review of the issues presented. See Thomas v. Arn, 474 U.S. 140, 148-153 (1985); Wells v. Shriners Hosp., 109 F.3d 198, 199-200 (4th Cir. 1997). 3

SCIBLE V. STEWARD, ET AL. ORDER ADOPTING REPORT AND RECOMMENDATION

1:08CV100

Because several issues remain in this case, pursuant to 28 U.S.C. § 636, the action is referred back to Magistrate Judge Kaull for further proceedings. It is so ORDERED. The Court directs the Clerk to transmit copies of this Order to counsel of record, and to the pro se plaintiff, by certified mail, return receipt requested. Dated: January 13, 2009.

/s/ Irene M. Keeley IRENE M. KEELEY UNITED STATES DISTRICT JUDGE

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